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Techies vs. Laywers & Judges
sl3xd asks: "With all the recent controversy about laws being passed about/with relation to current technologies, I've seen many, many postings about various members of out law establishments not understanding the technology. While there is some substance to this argument, my observation is that many of the 'Techies' posting have an even more incorrect view of what the laws involved are than the Lawyers/Judges can possibly have with technology. Do the lawyers know more about the technologies we love than we understand about the laws they fuss over? Or do we techies understand the realm of law on a level higher than the lawyer's understanding of technology?"
"The lawyers at least are told (in court) what the issues are, what the technology does, etc. They honestly do understand a great more than they are given credit for. They may not be guru's- but they (generally) require the case to be made plainly enough to them that they CAN make an informed decision before they actually do make a decision. They learn about the technologies involved.
Forgive me for bashing us techies (being one myself), but honestly, I believe that there is FAR more to understand within the various laws lawyers understand than in the technology we techies know."
Ah! A good, controversial question. I'll leave you all to discuss this one a bit further. There is quite a bit of food for thought here.
Technology changes fast enough that we can't etch a law into stone before the technology makes the law obsolete (not to mention the technology!).
I think lawyers understand perfectly, on a layman level, the technologies and their potential implications. I think they deserve credit for that.
On the other hand, it's true that geeks and techies have opinions on the technology they use that differs from the common man or the desires and needs of a large corporation. The typical geek has (and I apologise for the generalisation) a tendency to libertarianism, and a strong belief in the sacrosanct quality of freedom of speech and anonymity, at the cost of a few criminals getting away with it.
Now, this is certainly not the Government or the multinationals' point of view. To them, a more middle-right wing approach is preferable, where proper methods of control are put in place in order to fight crime, including crimes against the State. Multinationals also thrive on a society with a Right-wing approach, as they wish for less reglementation as possible in the Public sector.
Where am I going with this? Why, it's quite simple. It's this approach, and not the technology itself, which is the fundamental difference between lawyers and geeks. Lawyers are dominated and work for a world of Governments and large business interests. They have to legislate for a practical business world and not for technological utopias and moral principles in application.
I think we both understand the technology perfectly. What we want to do with it, on the other hand, is the huge difference.
To tell the truth, most "Techie" misunderstanding of the law happens because we really don't take the time to do thourough research.
Putting together a strong legal case is something that takes an extrodinary amount of research into existing rulings (precidents), or constructing a case convincing enough to throw out existing precident. This is why the EFF and other watchdog groups are so terribly important.
I think the larger concern is how to change existing law to allow for new technology. Most laws today seem to be passed on lobbying dollars and the ignorance of elected officials. (e.g. That communications law (? don't recall the name offhand ?) that was overturned by the Supreme Court about a year ago.
As the judicial system seems to be fairly strong against technical "hoodwinking" I think the danger exists of these large groups/companies using legislative coersion to achieve thier means. (Which will tie up the courts all over again, ad nauseum...)
On a technical knowledge level: When it comes down to the dirt of the 'law', I would say lawyers probably understand technology better than geeks understand the law. Lawyers in most trials have been told the technical aspects of the case involved insofar as the technical aspects involve the case. Geeks usually have little knowledge of actual laws and how they are interpreted by the court system. On a social level: I would say that geeks understand the social concepts of justice and fair play (right vs wrong) better than lawyers understand geek culture and how the social aspects of geek culture applies to the technologies involved in particular cases.
"Anyone who can't laugh at himself is not taking life seriously enough." - Larry Wall
While the basic premise here is true - techs generally don't know the law that well - on most issues this just isn't all that important.
The complaints haven't been about judges/lawyers getting the law wrong, but rather about them getting the technology wrong, which is something we *do* know about.
The complaints about the windowing patent, or the one-click patent aren't about the intricasies of patent law. The complaint is that the "advances" were obvious in their field, or that much prior art existed. That's a technological question, not a legal one.
Much of the DVD brouhaha focused on questions of fact, not questions of law. And we're quite right to complain when the facts are mis-stated by lawyers and judges.
There's also a larger issue brewing: the desire of large companies and their lobbyists (in the US at least) to institute laws and make decisions that go directly against the ideas that built the Net in the first place. This is where the real fight is going to be, and the question isn't "what is the law?", but rather "what law should we create/adapt for this situation".
Interpreting law is what lawyers and judges do; but making law is the right of citizens (at least in a democracy), and the responsibility of informed citizens. In the tech field, those informed citizens are us.
It follows from this that the lawyers responsible for presenting cases and the judges responsible for understanding the legal arguments presented are incapable - by definition - of keeping pace with technological development.
But the other problem is the adversarial nature of our legal system: "My lawyer can beat up your lawyer" and the notion of the lawyer as hired gun - a lawyer isn't paid to argue what's right vs. what's wrong; determining who's right is the judge's job. The lawyer has a very serious legal responsibility to represent the client's case as strongly as he can, regardless of its strength or weakness. (It is for this reason that a good lawyer will not take a weak case - but if the money's big enough, everyone's got his or her price.)
Unfortunately, what this means is that very intelligent people - and most lawyers are smart cookies - end up making insanely stupid arguments, building factual houses of cards with beautiful rhetorical facades. If you can't dazzle 'em with brilliance, you have no alternative but to boggle 'em with bullshit.
Trial by judge puts you at the mercy of someone who knows the law, but hasn't a clue about technology. Trial by jury (with the present jury selection process and minimal pay for jury duty) is arguably worse - you're at the mercy of drones who know neither law nor technology.
For trial by judge, you need someone who can make a strong legal argument to the judge. For trial by jury, you need someone who can gain the jury's emotional sympathies; a showman or huckster.
But either way, it still comes down to "My lawyer can beat up your lawyer". Until the legal system rises to anything more than medieval "trial by combat", with lawyers filling the roles of the armed combatants, we're doomed to be stuck in this quagmire for the forseeable future.